Jing Rong He v. Holder

11-2994-ag
He v. Holder
BIA
A076 096 507
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 17th day of August, two thousand twelve.
PRESENT:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
JING RONG HE,
Petitioner,
v. 11-2994-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Meer M. M. Rahman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Melissa Neiman-Kelting, Senior
Litigation Counsel; Stefanie Notarino
Hennes, Trial Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DISMISSED in part and DENIED in part.
Petitioner Jing Rong He, a native and citizen of the
People’s Republic of China, seeks review of a June 28, 2011
decision of the BIA denying his motion to rescind and reopen.
In re Jing Rong He, No. A076 096 507 (B.I.A. June 28, 2011).
We assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Motions to reopen removal proceedings in which an alien
was ordered removed in absentia are governed by different
rules depending on whether the movant seeks to rescind the in
absentia removal order or present new evidence of his
eligibility for relief. See Song Jin Wu v. INS, 436 F.3d 157,
163 (2d Cir. 2006); In re M-S-, 22 I. & N. Dec. 349, 353-55
(B.I.A. 1998) (en banc). Accordingly, where, as here, an
alien files a motion that seeks both rescission of an in
absentia removal order as well as reopening of removal
proceedings based on new evidence, we treat the motion as
comprising distinct motions to rescind and to reopen. See
Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see
also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1 (2d Cir.
2006). We review the denial of a motion to rescind an in
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absentia removal order under the same abuse-of-discretion
standard applicable to motions to reopen. See Alrefae, 471
F.3d at 357; see also Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
2005) (per curiam).
A. Motion to Rescind
We have reviewed both the IJ’s and the BIA’s opinions
“for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
233, 237 (2d Cir. 2008) (per curiam). An order of removal
entered in absentia may be rescinded only upon: (1) a motion
filed within 180 days after the date of the order of removal
if the alien demonstrates that the failure to appear was
because of exceptional circumstances; or (2) a motion to
reopen filed at any time if the alien demonstrates that he did
not receive notice as required or demonstrates that he was in
federal or state custody and the failure to appear was through
no fault of his own. 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R.
§ 1003.23(b)(4)(ii).
The agency did not abuse its discretion in denying He’s
motion to rescind because it reasonably determined that He
failed to establish that he had not received notice of his
October 1999 hearing. See 8 U.S.C. § 1229a(b)(5)(C)(ii).
When notice is sent by regular mail, the agency may apply a
“slight” rebuttable presumption of receipt if “the record
establishes that the notice was accurately addressed and
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mailed in accordance with normal office procedures.” Lopes v.
Gonzales, 468 F.3d 81, 85-86 (2d Cir. 2006) (per curiam)
(“Lopes I”). This presumption “does no more than to shift a
tie-breaking burden of proof to the alien claiming non-
receipt.” Lopes v. Mukasey, 517 F.3d 156, 160 (2d Cir. 2008)
(“Lopes II”). In turn, the agency has an obligation to
“consider all relevant evidence, including circumstantial
evidence, offered to rebut th[e] presumption.” Lopes I, 468
F.3d at 86.
Here, the record shows that He was served in August 1999
with a Notice to Appear (“NTA”) sent by regular mail to “5106
7th Avenue #3R Brooklyn, NY 11220-0000.” Because He does not
challenge the accuracy of the address listed on the NTA, and
because the NTA had been sent by regular mail in accordance
with established Department of Justice procedures, the agency
correctly determined that there was a “slight” rebuttable
presumption of receipt of notice, see Lopes I, 468 F.3d at
85-86, and therefore properly shifted the burden to He to
rebut the presumption, see Lopes II, 517 F.3d at 160.
In finding that He failed to rebut this presumption, the
agency determined that the factors weighing against He’s claim
of non-receipt (i.e., that He had previously received
correspondence from the New York Asylum Office at the same
address to which the NTA was mailed, and that he waited more
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than ten years, until after he became eligible for an
alternative form of relief, to seek to rescind the in absentia
removal order) outbalanced the sole factor weighing in favor
of He’s claim of non-receipt (i.e., He’s affidavit stating
that he did not receive notice of his hearing and that he had
“no motive or intent to evade the government”). See In re M-
R-A-, 24 I. & N. Dec. 665, 674-76 (B.I.A. 2008). Although He
argues that his affidavit should suffice to overcome the
presumption of receipt, the agency considered and balanced all
the factors relevant to He’s case, and reasonably concluded
that the factors adverse to He’s claim of non-receipt
outweighed the factors favorable to his claim. See id. at
674; Lopes I, 468 F.3d at 85-86 (stating that because “an
affidavit of non-receipt might be insufficient by itself to
rebut the presumption,” the BIA must consider “all relevant
evidence”).
Furthermore, although He alleges that he became aware of
the in absentia order of removal only after he consulted with
an attorney about applying for adjustment of status in June
2010, and that he diligently moved to rescind the in absentia
removal order the following month, He did not submit an
affidavit from his attorney, or any other individual with
knowledge of the relevant facts, corroborating his account of
the circumstances that led him to discover the in absentia
5
removal order. Nor did He allege that he took any steps to
inquire about his asylum application, or his immigration
status generally, during the ten-year period before the
priority date on his mother’s visa petition became current.
See In re M-R-A-, 24 I. & N. at 674.
Because the agency reasonably concluded that He failed to
rebut the slight presumption that he had received notice of
his October 1999 hearing, it did not abuse its discretion in
denying He’s motion to rescind the in absentia removal order.
See 8 U.S.C. § 1229a(b)(5)(C)(ii); see also Alrefae, 471 F.3d
at 359-60.
B. Motion to Reopen
An alien may file only one motion to reopen and must do
so within 90 days of the agency’s final administrative
decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
To the extent that the BIA construed He’s 2010 motion as a
motion to reopen to apply for adjustment of status, the BIA
properly found that the 2010 motion was untimely because it
was filed more than ten years after the IJ’s in absentia
removal order in 1999. See 8 U.S.C. § 1229a(c)(7)(C)(i). The
BIA also properly found that He’s eligibility for adjustment
of status did not constitute an exception to the applicable
time limitation on motions to reopen. See 8 U.S.C.
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§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also In re
Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009). Further, even
if we were to construe his motion as one invoking the BIA’s
authority to reopen his proceedings sua sponte, we would lack
jurisdiction to review the BIA’s discretionary decision not to
exercise that authority. See Mahmood v. Holder, 570 F.3d 466,
469 (2d Cir. 2009); Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006).
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
our review, the pending motion for a stay of removal in this
petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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